The requisition of land by the military authorities does not terminate an agricultural tenancy, and the doctrine of frustration does not apply to a lease agreement where the tenant has already been put in possession.

( 1 ) THIS is an appeal by the plaintiff from the appellate decree in her suit for recovery of a specified sum on a declaration that the defendant had fraudulently withdrawn that, amount and also for an injunction restraining the defendant from receiving payment of the said amount from his lawyer with whom it was lying. The facts are undisputed and may be briefly stated. The defendant took from the plaintiff an agricultural lease of three plots of land measuring about 10 bighas for a period of 5 years from Baisakh 1346 B. S. to Chaitra 1350 B. S. at an annual rent of Rs. 42/- only. During the currency of this lease, the three plots of land were requisitioned by the Government on behalf of the military authorities and they were taken possession of by the military authorities. The plots are still in the occupation of the military authorities even though the term of the lease has already expired. The compensation however, that was paid after the expiry of the period of the lease amounting to Rs. 443/- was withdrawn by the defendant's lawyer.

( 2 ) IT is the plaintiff's case that the tenancy having expired this money was payable not to the defendant but to the plaintiff. She accordingly asked for a declaration that she was entitled to this amount withdrawn by the defendant's lawyer and that there should be a permanent injunction to restrain the defendant from withdrawing any further amount to be awarded as compensation and also from receiving payment of the said sum of Rs. 443/- from the defendant's lawyer.

( 3 ) THE defence was that although the term of the lease had expired the tenancy was not at an end and it still subsisted so that the plaintiff was not entitled to the compensation money awarded for the land in question.

( 4 ) BOTH the courts dismissed the suit on the finding that as the tenancy of the defendant still subsisted although the term of the lease had expired the plaintiff was not entitled to the compensation already awarded.

( 5 ) ON behalf of the appellant only two points have been raised before me. The first is that although a non-occupancy raiyat, such as the defendant undoubtedly was, was under a mere liability to ejectment on the ground that the term of his registered lease had expired and although section 89 of the Bengal Tenancy Act lays down that no tenant shall be ejected from his tenure or holding except in execution of a decree it was not possible in this case to institute a suit for ejectment against the defendant for the simple reason that he was not in possession, so that it must be held that when the defendant became liable to ejectment and when he was, in fact, out of possession his tenancy had terminated.

( 6 ) THE next point raised is that the contract was frustrated by the fact that the military authorities occupied the land and made it impossible for the defendant to continue in occupation and for the plaintiff herself to get back possession.

( 7 ) IT is conceded on behalf of the appellant that unlike a terminable lease under the Transfer of Property Act which determines by an efflux of the time limited thereby an agricultural lease does not determine of itself on the expiry of the lease but it has to be terminated by a decree of the court as laid down in section 89 of the Bengal Tenancy Act. The whole contention of the learned Advocate for the appellant is that in this particular case it was not possible for the plaintiff to institute a suit for ejectment against the defendant because he was out of possession and it was not possible for the plaintiff to institute a suit for ejectment against the military authorities for whom the land in question had been lawfully requisitioned. For the proposition that no suit for ejectment against the tenant defendant was possible because he was out of actual physical possession reliance has been placed on the case of 'ram PERSHAD KOERI v. JAWAHIR ROY', 7 Cal L J 72, in which it has been held that where the mortgagee of a non-transfer